STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GENERAL MOTORS CORPORATION/ ) PONTIAC MOTOR DIVISION and ) TREVOR H. DUHANEY, )
)
Petitioners, )
)
vs. ) CASE NO. 89-6832
)
COLONIAL PONTIAC, INC. )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on August 20-24, and August 27-31, 1990, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Vasilis C. Katsanfanas, Esquire General Motors Rumberger, Kirk, Caldwell, Corporation/Pontiac Cabiness, Burke & Wechscler Motor Division 11 East Pine Street
Post Office Box 1873 Orlando, Florida 32802
Dean Bunch, Esquire Rumberger, Kirk, Caldwell,
Cabiness, Burke & Wechscler
106 East College Avenue, Suite 700 Tallahassee, Florida 32301
James Williams, Esquire Office of General Counsel
General Motors Corporation New Center One Building, 3031 West Grand Boulevard Detroit, Michigan 48232
For Petitioner: No appearance Trevor DuHaney
For Respondent: James D. Adams, Esquire
Peter Feaman, Esquire
Feaman, Adams & Fernandez, P.A. 1/ Corporate Plaza, Fourth Floor
4700 Northwest Second Avenue Boca Raton, Florida 33431
STATEMENT OF THE ISSUE
The issue in this case is whether the application of Trevor DuHaney and General Motors Corporation to establish additional representation for Pontiac Motor Division pursuant to Section 320.642, Florida Statutes, through the opening of a new dealership in Hialeah, Florida should be granted because of inadequate representation in the community or territory.
PRELIMINARY STATEMENT
By letter dated September 25, 1989, Petitioner, General Motors Corporation/Pontiac Motor Division ("General Motors") notified the Department of Highway Safety and Motor Vehicles of its intention to establish an additional dealership representation in Dade County, Florida. The proposed location was described as 700 feet west of the intersection of 59th Avenue and Palmetto access road on the southside of the Palmetto Expressway in Dade County.
On November 30, 1989 several existing Pontiac dealers, including Colonial Pontiac Inc., Hallett Pontiac/GMC Truck Inc., Packer Pontiac Company and J. M. Pontiac, Inc. filed a protest of the proposed dealership pursuant to Section 320.642, Florida Statutes (1989). The case was referred to the Division of Administrative Hearings ("DOAH",) which noticed and conducted a formal hearing pursuant to Sections 320.642 and 120.57, Florida Statutes. Prior to the hearing, all of the protesting dealers were dismissed from the case except Colonial Pontiac.
At the commencement of the hearing, Petitioner filed General Motors Corporation's Motion To Preclude Untimely Expert Analysis and Analysis of Service Business of Colonial Pontiac and Petitioner General Motors Corporation's Motion To Preclude Evidence Regarding Financial Condition of Non-Protesting Dealers. After listening to argument from the parties on both of these Motions, the Motions were denied without prejudice to Petitioner's ability to renew the objections as the evidence was presented during the course of the hearing. The issues raised in the Motions are addressed below in the discussion regarding objections made to the specific testimony offered at the hearing.
At the hearing, Petitioner presented the testimony of three witnesses to establish its prima facie case: James Anderson, who was accepted as an expert in the area of dealer network analysis; Dr. Stanley Smith, who was accepted as an expert in demographics with a specialty in population projections; and Dr. David Kamerschen, who was accepted as an expert in economics with a speciality in industrial economics.
After Petitioner presented its prima facie case, Respondent presented the testimony of ten witnesses: Mark Kahn, one of the principals of Colonial, who was accepted as an expert regarding economic and marketing conditions affecting automobile dealers and business loss arising from a new dealership; Thomas Leahman, the president and owner of Hallett Pontiac/GMC Trucks; Burton Kahn, one of the founders of Colonial; Thomas Mann, the controller for Colonial; Gary Homa; Fred Senra; Paul Csicsila; Robert Dilmore, who was accepted as an expert in the area of dealer network analysis, dealership operation and the financial impact of opening a new dealership on existing dealers; Dr. Raymond Fishe, who was accepted as an expert in economics and econometrics; and John Forsyth.
Petitioner called five rebuttal witnesses: Dale Hermiller; Dr. James Wendelberger, who was accepted as an expert in the area of mathematics and statistics; Dr. Carol Taylor West, who was accepted as an expert in the area of
economics and economic forecasting; Victor David Nelawake, who was accepted as an expert in accounting; and James Anderson, who had previously testified in Petitioner's case in chief. Respondent recalled Marc Kahn to testify in surrebuttal.
During the hearing, Petitioner objected to the testimony of Respondent's witness Thomas Mann. Mr. Mann had prepared an exhibit (Respondent's Exhibit 31) regarding profits and expenses for car lines handled at Colonial. This exhibit was not presented to Petitioner until after the deadline for production of expert exhibits. Furthermore, the analysis was not completed at the time of Mr. Mann's discovery deposition. Mr. Mann's direct testimony was presented during the hearing and the exhibit was accepted into evidence. However, because Petitioner was denied a fair opportunity to prepare cross examination of Mr.
Mann, the record in this proceeding was left open in order to allow Petitioner to conduct the cross-examination of Mr. Mann by deposition subsequent to the conclusion of the hearing and to submit that deposition as a late-filed exhibit.
During the testimony of Marc Kahn, Respondent offered certain worksheets and maps as exhibits. After extensive discussion and argument, the worksheets were withdrawn as exhibits and the maps were accepted as Respondent's Exhibits 18, 19 and 20. Those exhibits depicted sales made by Colonial to residents in certain geographical areas. The exhibits were not produced during the deposition of Mr. Kahn and were not designated as expert exhibits even though they were used as the foundation for calculating projected lost sales at Colonial as a result of the new dealership. Because the documents were not produced within the time frame set up in the prehearing order for expert exhibits, Petitioner was granted the opportunity to supplement the record in this proceeding to directly address the methodology utilized in the preparation of those exhibits.
On December 6, 1990, Petitioner filed Petitioner, General Motor Corporation's Submission for the Record of the Testimony of James A. Anderson and Thomas Mann and Motion To Close Record. Attached to that pleading was the testimony of James A. Anderson taken on November 26, 1990 and the cross- examination of Thomas Mann taken on November 28, 1990 in accordance with the rulings made during the hearing. On December 17, 1990, Respondent filed a Motion To Compel Deposition Testimony and For Leave To Offer Additional Surrebuttal Evidence and Response to GM's Motion To Close Record. On December 26, 1990, Petitioner filed General Motors Corporation's Memorandum in Opposition to Respondent's Motion To Compel Deposition Testimony and For Leave To Offer Additional Sur-Rebuttal Evidence. After reviewing these pleadings, the submitted testimony and the entire record in this case, it is concluded that both parties have had a full and fair opportunity to present their positions.
Consequently, Petitioner's Motion to Close Record is granted and Respondent's Motion to Compel and Request to Submit Additional Surrebuttal Evidence are denied. 2/
Petitioner had 181 exhibits marked for identification during the course of the hearing. Petitioner's Exhibits 1-128, (including 28B), 130, 131, 145, 148-
150, 153, 155-159, 173 and 174 were accepted without objection. Petitioner's
Exhibits 132-137, 144, 151, 152, 154, 166-172 and 175-180 were accepted over the objection of Respondent. Petitioner's Exhibits 161-165 were accepted for limited purposes and not to establish the truth of the matter contained in the documents. Petitioner's Exhibits 129, 160 and 181 were rejected. Petitioner's Exhibits 138-143, 146 and 147 were marked for identification purposes, but were not offered into evidence. As discussed above, Petitioner has submitted certain
depositions subsequent to the hearing. During the deposition of James Anderson, Petitioner offered composite Exhibit 182 to which Respondent did not object. It is hereby accepted into evidence.
Respondent had 78 exhibits marked during the course of the hearing.
Respondent's Exhibits 1-8, 17, 24-29, 35, 38-65, and 73-77 were accepted without objection. Respondent's Exhibit 18-23, 30-34, and 66-72 were accepted into evidence over Petitioner's objections. Respondent's Exhibits 9-13 were marked for identification purposes only and were not offered into evidence.
Respondent's Exhibits 14, 15 and 15A were hearsay documents that were not offered to establish the facts contained therein but were offered for limited purposes only. Respondent's Exhibits 16 and 78 were not accepted into evidence.
Respondent's Exhibit 36 was a deposition of Dan Moran which was taken on July 24, 1990. Respondent's Exhibit 37 was a two volume deposition of Daniel Horvath which was taken on July 25 and August 15, 1990. At the hearing, Petitioner objected to the introduction of these depositions and filed written objections regarding both of the depositions. Respondent was granted leave to file a written response to those objections within twenty days of the close of the hearing. On September 21, 1990, Respondent filed a written response to the objections submitted by Petitioner. As explained during the hearing, Section 320.642(2)(b)3 limits the consideration of the financial impact of the proposed new dealership to the protesting dealer or dealers. However, Section 320.642(2)(b)10 permits the consideration of "whether the establishment of the proposed dealership appears to be warranted and justified based on economic and marketing conditions pertinent to dealers competing in the community or territory including anticipated future charges." The testimony of both witnesses is arguably within the scope of subsection 10 and, therefore, Petitioner's objections on the grounds that the testimony was irrelevant were denied.
Petitioner also objected to the testimony of both witnesses on the grounds that they were not designated or qualified as expert witnesses and/or that the witnesses were not "competent" to testify on certain matters. After reviewing the depositions and the arguments made at the hearing and in the written submittals, those objections are overruled.
Petitioner objected to several leading questions asked during the depositions. Specifically, beginning on page 28, line 17 of the deposition of Dan Moran and on page 21, line 20 through page 22, line 22 of the first deposition of Daniel Horvath and page 62 line 24 through page 63 line 4 of the second deposition of Daniel Horvath. Respondent did not attempt to rephrase any of the questions after the objections were made. The objections are sustained and the testimony has been disregarded. Otherwise, the depositions have been reviewed in full and considered in the preparation of this Recommended Order.
Prior to the hearing, several disputes arose during discovery regarding Respondent's right to inquire into the qualifications of the proposed operator of the new dealership, Trevor DuHaney. During discovery hearings and at the final hearing in this cause, the undersigned Hearing Officer stated his opinion that the qualifications of the proposed operator of the new dealership were not among the factors that can be considered in determining whether the application for a new point should be approved under Section 320.642, Florida Statutes.
During the course of the final hearing, Respondent was granted an opportunity to proffer its evidence on this issue. That proffer was conducted outside the presence of the Hearing Officer and the transcript of that testimony has not been filed with DOAH.
The transcript of the proceeding consists of 10 volumes. The entire transcript was filed with DOAH, except Volume 1 and the testimony of Trevor DuHaney. The first volume of the transcript was prepared by a separate court reporter and was never filed with DOAH. As indicated above, Mr. DuHaney's testimony was proffered outside the presence of the Hearing Officer. The transcript of his testimony was not submitted for consideration. Both of the parties have submitted proposed recommended orders. In addition, Respondent filed a written final argument. All of the parties' post-hearing submittals have been reviewed and considered. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.
Petitioner General Motors Corporation/Pontiac Motor Division ("General Motors" or "Pontiac") seeks to establish a new Pontiac dealership in Hialeah, Dade County, Florida. Petitioner Trevor DuHaney is the proposed dealer/operator for the proposed facility. One of the goals of Chapter 320, Florida Statutes, is to provide minorities with opportunities for full participation as motor vehicle dealers. Mr. Duhaney is black and, therefore, is a member of a minority group.
The proposed new dealership would be located seven hundred feet west of the intersection of 59th Avenue and the Palmetto Access Road on the southside of the Palmetto Expressway in Dade County, Florida. (This proposed new dealership is sometimes referred to as the "New Point.")
Respondent, Colonial Pontiac, Inc. ("Colonial"), is a licensed Pontiac dealership with facilities located at 8301 N.W. 7th Avenue, Miami, Florida. Colonial filed a timely protest to the Application pursuant to Section 320.642, Florida Statutes. There is no dispute that Colonial has standing to protest the establishment of the New Point pursuant to Section 320.642, Florida Statutes.
The New Point is located in a contractual area of primary responsibility ("APR") which Pontiac currently assigns to seven existing Pontiac dealers. Pontiac has 53 APRs or market areas in Florida. Pontiac uses the acronym MDA to refer to a geographic area contractually assigned by Pontiac to more than one dealer. An MDA is an automobile marketing area consisting of contiguous communities and is a demographic or geographic area that is too large to be served by one dealer. Pontiac describes the APR in this case as the Southeast Florida Multiple Dealer Area ("SEFL-MDA"), which spans both Dade and Broward counties.
There are six MDAs in Florida. The remaining 47 market areas are single dealer areas (SDAs) where only one dealer is located.
For planning purposes, Pontiac breaks an MDA into areas of geographic sales and service advantage ("AGSSA"). AGSSAs are used as a dealer network planning tool. An AGSSA represents the area in which an existing or proposed resident dealer has or should have a competitive advantage over other same line- make dealers by virtue of the resident dealer's location. AGSSA sizes and their geographic areas are sometimes modified to reflect changing population patterns and consumer behavior. AGSSAs are defined by a U.S. Census Tracts or where
Census Tracts cannot be used, by other geographic descriptions such as zip codes, which are assigned to the nearest dealer unless there is some overriding consideration, such as natural or man-made barriers or demonstrated consumer unwillingness to travel from one area to another as verified by consumer behavior data. An AGSSA does not represent an exclusive sales area and dealers are not contractually assigned to an AGSSA in their dealer agreement.
Pontiac has divided the SEFL-MDA into eleven AGSSAs. Those AGSSAs and the dealers that occupy them are depicted on Petitioner's Exhibit 4. AGSSA 11 is occupied by Sheehan Pontiac and is located in Lighthouse Point in Broward County. AGSSA 12 is occupied by Palm Pontiac and is located in North Lauderdale in Broward County. AGSSA 13 is occupied by J. M. Pontiac in Hollywood in Broward County. AGSSA 14 is a currently unoccupied study area in Plantation in Broward County. AGSSA 15 is another unoccupied study area in Fort Lauderdale in Broward County. AGSSA 21 is currently occupied by Colonial Pontiac in Miami in Dade County. AGSSA 22 is currently occupied by Packer Pontiac in Miami. AGSSA
23 is occupied by Hallett Pontiac in Miami. AGSSA 24 is occupied by Williamson Pontiac in Homestead in Dade County. AGSSA 25 is a study area that is currently unoccupied in West Miami. AGSSA 26 is the location of the proposed New Point in North Hialeah in Dade County.
As discussed in more detail in the Conclusions of Law below, Section 320.642, Florida Statutes sets forth the conditions that must exist before a new motor vehicle dealership can be added to a market area. The statute provides that an application for a new dealership shall be denied if "the licensee fails to show that the existing franchised dealers...of the same line-make in the community or territory of the proposed dealership are not providing adequate representation of such line-make motor vehicles in such community or territory." This statute was amended in 1988 to specify several factors that can be considered in determining whether existing dealers are providing "adequate representation" of the manufacturer in the pertinent community or territory. Each of these factors is addressed below. In view of the statutory framework, the first issue to be addressed is the identification of an appropriate community or territory.
COMMUNITY OR TERRITORY
The statute does not provide any specific criteria for identifying the "community or territory."
In order to determine the adequacy of representation under Section 320.624, an interconnected automobile market area should be identified as the community or territory. One approach for identifying an interconnected automobile market is to determine the extent of cross-sales between two geographic areas. A 30% level of cross sales is a useful standard for identifying an interconnected market area. However, it should not be used as an absolute standard.
In the area immediately surrounding the SEFL-MDA, there are 5 Pontiac dealers called "fringe dealers." There is very little cross sell between the areas occupied by these fringe dealers and the SEFL-MDA. While one fringe dealer, Sherwood Pontiac in Delray Beach, registers 30.9% of its sales in the SEFL-MDA, only 16.7% of the Pontiacs registered to customers in the AGSSA occupied by Sherwood Pontiac are sold by SEFL-MDA dealers. Because only a limited number of customers in the Delray Beach area purchase cars from dealers in the SEFL-MDA, it is reasonable to conclude that Delray Beach is not part of an interconnected shopping area with the SEFL-MDA. None of the other fringe
dealers sell a significant percentage of their cars to customers in the SEFL- MDA. Accordingly, the "community or territory" for purposes of this hearing is no larger than SEFL-MDA.
Petitioner has attempted to isolate a smaller interconnected marketing area within the SEFL-MDA.
Petitioner's expert James Anderson testified that he believed there was an interconnected automobile market in North Dade County. This area consists of AGSSA's 21, 22, 23, 25 and 26 and will be referred to as "Comm/Terr."
The Comm/Terr identified by Mr. Anderson excludes AGSSA 13 (occupied by J. M. Pontiac) which is adjacent to and immediately north of AGSSA 26, the proposed New Point. The Comm/Terr includes AGSSA 23 (which is currently occupied by Hallett Pontiac) even though it is approximately 18.5 miles from the proposed New Point (more than twice as far as J. M. Pontiac) and, unlike J. M. Pontiac, is not directly contiguous to AGSSA 26. The exclusion of AGSSA 13 and the inclusion of AGSSA 23 is significant because the penetration rate in AGSSA
13 (where J. M. Pontiac is located) exceeds the expected penetration efficiency for the area and the penetration rate in AGSSA 23 (where Hallett Pontiac is located) is below the expected penetration efficiency. Thus, the inclusion of AGSSA 23 and the exclusion of AGSSA 13 results in a lower penetration effectiveness for the Comm/Terr. If AGSSA 13 was included in the Comm/Terr and AGSSA 23 was excluded, the penetration effectiveness in the Comm/Terr in 1989 would have been 81.3% compared to 66%. (See Findings of Fact 63 below.) The evidence did not establish how the penetration effectiveness in the Comm/Terr would have changed in prior years if the same modification in the composition of the Comm/Terr was made in those years. However, it is clear that the penetration efficiency would have been significantly higher.
Mr. Anderson attempts to justify the exclusion of AGSSA 13 by relying on the 30% minimum cross-sell standard. The three existing dealers in the Comm/Terr (Colonial, Packer and Hallett) registered from 78.8% to 94.7% of their sales within the Comm/Terr. Mr. Anderson noted that none of the remaining AGSSAs in the SEFL-MDA, including AGSSA 13, cross-sell with the Comm/Terr at a 30% level. However, this comparison is misleading.
While J. M. Pontiac only sold 14.1% of its cars in the Comm/Terr as defined by Mr. Anderson, if AGSSA 13 were added to the Comm/Terr it is clear that a very high percentage of J. M. Pontiac's sales would have been within the redefined area. Moreover, in 1989, J. M. Pontiac sold 343 cars into the Comm/Terr as defined by Mr. Anderson and that Comm/Terr did not even include AGSSA 13 where J. M. is located. Colonial sold 378 cars into the Comm/Terr; Packer Pontiac sold 485 and Hallett sold 484. The AGSSA in which each of these three dealers, was located was in the Comm/Terr. In other words, J. M. Pontiac is selling 70 to 90% as many cars into the Comm/Terr as any other dealer even though its own AGSSA is not included in the area as defined by Mr. Anderson. From 1985 through 1989, J. M. Pontiac sold 709 cars that were registered in AGSSA 26. By contrast, Hallett Pontiac, which is part of the Comm/Terr as defined by Mr. Anderson, sold only 126 cars that were registered in AGSSA 26 during the same time period.
J. M. Pontiac, which is located in AGSSA 13, is an extremely high volume dealer which has one of the highest penetration rates of any Pontiac dealer in the state of Florida. While only a limited number of Pontiac
customers in AGSSA 13 purchased cars from dealers in others AGSSAs, the large number of sales made by J. M. Pontiac into the Comm/Terr refutes the contention that the Comm/Terr is a separate inter-connected market.
Petitioner defends the designation of the Comm/Terr by pointing out that the registration data reflects only limited reciprocal cross-sales between AGSSA 13 and the Comm/Terr. Only 6.6% of AGSSA 13 Pontiac customers purchased cars from dealers in the Comm/Terr. However, in view of the extremely high penetration rates achieved by J. M. Pontiac in the AGSSA where it is located and the extremely high number of cars sold by J. M. Pontiac into AGSSA 26, Petitioner's reliance upon the 30% reciprocal cross-sale requirement to exclude AGSSA 13 from the Comm/Terr is not warranted. This is especially true since Mr. Anderson disregarded his own 30% reciprocal cross-sell requirement in establishing the Comm/Terr. For example, in 1989 Packer and Hallett combined sold only 17.4% of the Pontiacs registered in AGSSA 21 and Packer and Colonial combined sold only 17.6% of the Pontiacs registered in AGSSA 23. The Petitioner's attempts to justify the exceptions to the 30% reciprocal cross-sale requirement in some instances while strictly applying it in order to exclude AGSSA 13 from the Comm/Terr are not persuasive.
In sum, the Comm/Terr appears to be more an artificial creation to justify a desired result than a truly separate inter-connected marked.
In view of these problems, the area identified as the Comm/Terr is rejected as the appropriate community or territory for purposes of this case. Nonetheless, specific findings will be made in this Recommended Order with regard to market penetration in this area. The evidence regarding Pontiac's inadequate penetration in the SEFL-MDA and the areas around AGSSA 26 is important to consider in evaluating this case.
The entire SEFL-MDA is the appropriate community or territory for purposes of this case and AGSSA 26 is an identifiable plot within that area.
Respondent has not demonstrated that redefining the Comm/Terr to exclude AGSSA 23 and include AGSSA 13 would raise the penetration rates to the expected levels. In any event, the evidence established that AGSSA 26 is an identifiable plot within the community or territory however defined.
ADEQUACY OF REPRESENTATION
Once the community or territory has been identified, it must be determined whether the existing franchised dealers are providing "adequate representation" in the community or territory. In this regard, the 1988 statute specified 11 items that may be considered. These items were not intended to be all inclusive.
At the hearing, no evidence was presented regarding factors 5 and 8.
Section 320.642(2)(b)5 provides that consideration can be given to:
(5) Any attempts by the licensee to coerce the existing dealer or dealers into consenting to additional or relocated franchises of the same line-make in the community or territory.
There is no contention by the protesting dealer in this case that there was any attempt at coercion by the licensee to consent to the additional representation.
Section 320.624(2)(b)8 permits consideration of:
(8) Whether the protesting dealer or dealers are in substantial compliance with their dealer agreement.
For purposes of this proceeding, General Motors does not contend that the protesting dealer is not in substantial compliance with its dealer agreement. Each of the remaining factors will be dealt with below.
Factor #1
The impact of the establishment of the proposed or relocated dealer on the consumers, public interest, existing dealers, and the licensee; provided, however, that financial impact may only be considered with respect to the protesting dealer or dealers.
The statute only permits financial impact to be considered in connection with the protesting dealer, in this case Colonial.
Colonial presented an elaborate calculation of the expected financial impact of the insertion of the proposed New Point. That analysis broke down dealer operations in terms of retail sales, used vehicle sales, parts, service and body shop, and considered the impact on Colonial if the proposed New Point had been in place during the preceding years. Colonial presented two versions of its analysis. The first version assumes that, on a net basis, Colonial would lose all the sales it made in AGSSA 26 and half of the sales it made in AGSSA
The second version assumes the net loss of sales will be equal to its sales in AGSSA 26. Both versions are based on the fundamental assumption that there will be no additional sales generated by the new dealer and, in fact, that there would be a net loss of sales. This primary assumption is rejected as not established by persuasive evidence. Because the fundamental assumption that Colonial will lose, on a net basis, all of its sales in AGSSA 26 (and one half its sales in AGSSA 25 in the first version) is not accepted, Respondent's calculation of financial impact is inherently flawed. There are several other significant flaws in the methodology employed by Respondent in calculating the alleged financial impact. These flaws include the manner in which the sales in AGSSA 26 were calculated, the assumption that Colonial would lose used car sales as well as revenue from both its wholesale and retail parts department and questionable accounting allocations. In view of the conclusions reached herein, these flaws need not be addressed in more detail. Suffice to say that these issues raise serious questions as to the methodology employed.
Colonial's contention that the addition of a new dealership will be devastating to its operations has not been established by persuasive evidence.
Petitioner contends that the addition of a new dealer in the unrepresented AGSSA 26 will only increase Pontiac's market share with no loss of sales for existing surrounding Pontiac dealers. To support this contention, Petitioner presented several case studies which it contends demonstrate that an additional dealer in an underrepresented market will not impact existing
dealers. However, Petitioner's analysis only included the year before and the year after a new point was inserted. This short term view can be misleading because of the increased advertising, increased exposure and factory help that typically accompany the opening of a new dealership. Furthermore, there were unique characteristics about each of the case studies which would probably not be duplicated if the New Point in this case were opened.
For example, one of the case studies cited by Petitioner involved Art Moran Pontiac in West Palm Beach which opened in December of 1987. In 1988, Pontiac provided 1.5 million dollars in key market advertising funds and there was a significant increase in sales throughout the MDA during that year. It is impossible to determine the extent to which the increased penetration efficiency in the area in 1988 was the result of the increased marketing as opposed to the opening of the new dealership. Furthermore, the new dealership's sales decreased from 928 in 1988 to 693 in 1989 to 300 during the first six months of 1990. Thus, there has been a steady decrease in sales since the time the new dealership opened and it appears that the new dealership has lost a considerable amount of money.
Petitioner has also cited the example of Sunset Pontiac in Port Richey, Florida which was established in February of 1986. The existing dealers did not suffer a major decrease in their sales as a result of the addition of that new dealership. While Pontiac penetration efficiency in Sunset's AGSSA increased dramatically in 1986 and 1987, there was approximately 40 miles distance between Pontiac dealers prior to the insertion of the new point. This distance diminishes the likelihood of a negative impact on the neighboring dealers.
The third example involved the addition of a new dealer in Perry, Florida in 1985. Because that area was SDA, it is difficult to draw any relevant conclusions.
While the examples cited by Petitioner have many unique characteristics which make them of questionable relevance, Respondent has not provided any persuasive evidence to support its contention that it is likely to lose, on a net basis, all of the sales it currently makes into AGSSA 26 as a result of the addition of a new dealership in that area. Certainly, the new dealership will require Colonial to become more competitive and some lost sales are possible. However, the addition of the New Point will enable Pontiac to offer more interbrand competition which should result in increasing overall sales and marketshare for Pontiac.
There is no dispute that proximity is one of the key factors influencing a customer's choice of a dealer. In 1989 there were 626 in-sell registrations in the Comm/Terr. In-sells are sales registered in the Comm/Terr that were made by Pontiac dealers located outside of the area. Price, selection and service constitute the most prevalent reasons consumers do not buy cars from the closest dealer of the brand they choose. The high level of in-sell into the Comm/Terr reflects consumer dissatisfaction with the existing dealers and indicates that consumers are willing to travel to less convenient dealers to buy Pontiacs. By becoming more competitive and reducing in-sells, Colonial can reduce the negative impact of the opening of a new dealership.
AGSSA 26 consumers are, on average, 7.4 miles from the nearest Pontiac dealer. A dealership's ability to penetrate a market diminishes with distance. Colonial penetrates at approximately 2.5% within two miles of its dealership, dropping to 1.1% or less after four miles and to .70% or less after eight miles.
Packer penetrates at 2.6% within two miles dropping to 1.4% within four miles and reaching no more than 1.1% thereafter. Hallett penetrates at 2.9% within two miles, dropping to 1.7% after four miles and no more than 1% after eight miles. These figures are consistent with national averages that indicate Pontiac MDA dealers' ability to penetrate the market falls below 2% after only six miles. Because the proposed New Point is so far from the other dealerships (Colonial is closest at approximately eight miles), it is unlikely to have a significant sales impact on these dealerships.
In sum, the evidence was insufficient to conclude that the opening of the New Point will force Colonial out of business or even that it will have a significant financial impact on that dealership. As discussed in more detail below, Colonial had some unprofitable years in 1987 and 1988. However, the first six months of 1990 reflect that Colonial is making a profit. While Colonial may have to become more competitive, the evidence indicates that there are sufficient market opportunities available such that Colonial would not have to lose a significant number of sales as a result of the addition of the New Point. Establishment of a Pontiac dealer at the proposed location in AGSSA 26 will enable Pontiac to offer better convenience to consumers without threatening the competitive advantages existing Pontiac dealers enjoy near their own dealerships. The existing dealers are so far from AGSSA 26 that their sales are not likely to be substantially impacted by the addition of Duhaney. The benefits of increased interbrand and intrabrand competition should include more efficient dealers, more reasonable prices and better inventory and service. A new Pontiac dealer in AGSSA 26 will likely benefit consumers and the public interest. It will provide the growing number of AGSSA 26 residents with a more convenient place to shop for new Pontiacs and a more convenient Pontiac service location. It will also provide consumers with an increased new car inventory to choose from and expanded opportunities to compare the value and service offered by Pontiac and all other brand dealers.
Factor #2
The size and permanency of investment reasonably made and reasonable obligations incurred by the existing dealer or dealers to perform their obligations under the dealer agreement.
This factor is not specifically limited to the protesting dealer or dealers. However, evidence was only presented regarding Colonial Pontiac.
Colonial is a family owned business that has been in operation for almost 45 years. Burton Kahn, one of the founders of Colonial has invested 45 years of his working life in the dealership and his son, Marc Kahn, has invested his entire working life in the dealership.
Colonial maintains a Pontiac inventory of approximately 2 1/2 to 3 million dollars. It also has an extended credit line with GMAC of between 5 million and 6 million dollars for its floor plan.
Colonial has to maintain 1.6 million dollars in net working capitol to meet General Motors' requirements.
Most of the property of which the Colonial dealership is located is subleased from a partnership that is comprised mainly of the Kahn family. That partnership controls the property pursuant to 99 year lease. The monthly rental
payments total slightly over $19,000. It is not clear whether this rent includes the property occupied by the other Colonial franchises (Jeep/Eagle and Isuzu). The exact terms of the leases were not established in this proceeding. In 1989 and in the first six months of 1990, Colonial has only paid $2,000 of its monthly rental payments. The remaining $17,000 plus in rental payments were waived by the Kahns so that the dealership could meet its net working capitol requirements.
Since Colonial does not own the building or property on which the dealership is situated, the bulk of its assets consists of inventory, parts and other items that are relatively liquid and could be liquidated into cash in the short term if necessary.
Factor #3
The reasonably expected market penetration of the line-make motor vehicle for the community or territory involved, after consideration of all factors which may effect said penetration, including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, or other factors affecting sales to consumers of the community or territory.
The most reliable source for data regarding market penetration and/or sales is provided by R. L. Polk and Company ("Polk"). Polk is a nationally recognized organization that collects and analyzes automobile registration data nationwide for all lines and makes of automobiles. Among other things, Polk attempts to assign each automobile registration to a specific census tract. Total industry retail registrations can then be compared to the retail registrations of a particular line-make in a given area to determine market penetration. By doing so, a manufacturer can evaluate its marketing success or lack thereof in a given geographic area.
Retail market penetration is a relative concept that compares the retail registrations of one line-make with all industry registrations in a particular geographic area. Stated differently, it represents the percentage of business that Pontiac obtains out of the total universe of business available.
Mr. Anderson has conducted an analysis of market penetration in the SEFL-MDA by reviewing Polk registration data at both the county and census tract levels. The registration data reviewed included every vehicle registered to an address within a particular area of geography (county or census tract) regardless of the selling dealer. The registrations can be separated between retail and fleet sales. 3/
A comparison of retail registration efficiency in a particular geographic area to the national average penetration for a particular line-make is a useful standard for evaluating dealer network performance. National average penetration figures include adequately represented markets, inadequately represented markets and non-represented markets throughout the United States. Respondent argues that the use of national average penetration rates is not appropriate because there are many Single Dealer Areas (SDAs) which are included in determining national penetration rates. SDAs generally have a higher
penetration rate than MDAs. Nonetheless, many MDAs meet or exceed the national averages. Therefore, national averages do provide a useful standard for comparison.
Pontiac's retail penetration in the state of Florida over the last three years has been less than its national penetration. In 1987, Pontiac's retail penetration average nationally was 6.64% as opposed to 5.97% in the state of Florida. In 1988, the national average was 7.08% as compared to 6.55% in the state of Florida; in 1989, the national average was 6.8% versus 5.82% in Florida.
Petitioner's contention that the national penetration averages are a "conservative" standard for evaluating dealer network performance is an overstatement. However, the national averages are a useful starting point in evaluating dealer network performance.
If a particular vehicle type was either extremely popular or unpopular in a market, analyzing dealer network performance in accordance with national penetration averages would be inappropriate. For example, if consumers in an area disproportionately preferred "subcompact" vehicles and the manufacturer penetrates that category poorly or does not have an entry in that category, less than national average penetration rates would probably be appropriate.
In an attempt to adjust the national penetration averages to reflect unique local consumer preferences, Petitioner conducted a "product popularity analysis" or "segment popularity analysis". This analysis attempts to account for the relative popularity of various vehicle types independent of line-make in a specific geographic area as compared to the popularity nationally.
The segment or popularity analysis measures demand by actual consumer purchases and presumes them to be a reflection of all demographic and lifestyle characteristics that may impact their auto purchasing decisions. This analysis assumes that by adjusting for differences between the relative popularity of various vehicle types, unique characteristics of the local area, over which the dealer network has no control, may be accounted for. The analysis results in an adjustment to the national penetration average to reflect the local conditions as reflected by the types of cars purchased. This adjusted figure is referred to as the "expected penetration."
In performing a segment popularity analysis, Pontiac has traditionally grouped vehicles into five vehicle types: subcompact, compact, mid-sized, regular and high. Polk categorizes registration data according to these classifications.
Respondent contends that the five sub-categories are poorly defined and do not adequately isolate the unique characteristics of a particular area. While the analysis is not perfect, it does provide a useful approach for adjusting national penetration averages to reflect local consumer preferences.
In 1989, Pontiac established a new vehicle classification system with
20 different categories. Applying this more detailed classification scheme results in a slightly higher expected penetration than was calculated with the five segment scheme. However, the difference is relatively minimal and it does not appear that the more detailed classification scheme would significantly alter the conclusions reached under the five category classification system.
Applying the five category segment popularity analysis to the three pertinent areas in this case (the Comm/Terr, AGSSA 26 and the SEFL-MDA) results in a slight downward adjustment from the national penetration average during the years 1987 through 1989. In 1987 the adjusted expected penetration in the Comm/Terr is 5.85%, in AGSSA 26 it is 6.2% and in the SEFL-MDA it is 5.94%. In 1988, the adjusted expected penetration rate is 6.29% in the Comm/Terr; 6.84% in AGSSA 26 and 6.38% in the SEFL-MDA. In 1989, the adjusted penetration expectation is 5.89% in the Comm/Terr; 6.22% in AGSSA 26; and 6.11% in the SEFL- MDA.
Registration data reflects actual consumer behavior as opposed to a projection based on demographics. Thus, registration data is more persuasive in measuring market performance than data estimating what consumers might do based upon demographic characteristics. Petitioner has conducted an analysis to determine if the age composition of the Comm/Terr or AGSSA 26 would change expected penetration. Based upon Pontiac's penetration in various age categories nationwide and after calculating for differences in age distribution between the Comm/Terr, AGSSA 26 and the nation, it would be reasonable to expect Pontiac to achieve 97.27% of the national average penetration in the Comm/Terr and 100.21% of the national average in AGSSA 26. Thus, differences in age distribution do not justify rejecting the national average as a reasonable standard for analyzing dealer network performance.
A similar analysis based on income distribution confirms that there is no meaningful difference between (a) AGSSA 26 and the nation or (b) the Comm/Terr and the nation to refute or challenge the conclusions drawn from the product popularity analysis.
In 1989, 21 out of the 53 Florida markets, including two of six MDAs, exceeded expected penetration as determined by the product popularity analysis. In 1987, 2 of 8 MDAs reached their expected penetration and 3 of 8 made it in 1988. Respondent suggests that since so few markets meet the standard, it is unrealistically high. This criticism is rejected. Respondent has not provided an alternate or more reasonable market penetration standard, nor has it proved that the expected penetration standard is flawed. Pontiac has recently added a dealer in one of the MDA's where it has consistently failed to meet expected penetration. In addition, in this case, Pontiac is seeking to add a dealer in the SEFL-MDA. The expanded dealer networks will help Pontiac reach expected penetration.
Respondent suggests that the expected penetration for the areas in question should not be determined by utilizing data that includes both SDAs and MDAs. In response to this criticism, Mr. Anderson calculated an average market penetration for Florida MDAs excluding the Comm/Terr and the Tampa MDA where a new dealer had recently been added. This average market penetration in Florida MDAs was higher than the expected penetration calculated for AGSSA 26, the Comm/Terr and the SEFL-MDA.
In the Comm/Terr and AGSSA 26, there are numerous individual census tracts that meet or exceed the expected penetration. The product popularity in these "gain tracts" does not differ significantly from the product popularity in the Comm/Terr and AGSSA 26 generally. The lack of any significant difference indicates that the higher penetration rates in the gain tracts are not the result of unique consumer preferences and/or demographic characteristics in those tracts. The existence of gain tracts that do not differ significantly in product preference indicates that the expected penetration can be achieved in the Comm/Terr and AGSSA 26.
While Respondent has criticized the use of national average penetration figures and the development of a penetration standard based on a product popularity adjustment to national average, Respondent has not provided any alternative penetration standard to evaluate Pontiac's performance in any community or territory. Respondent suggested that a penetration standard based on the five largest states would be more appropriate than national averages. However, it does not appear that such a standard would be significantly different than the expected penetration calculated by Petitioner. In sum, the evidence established that the expected penetration calculated by utilizing national average penetration adjusted for local conditions as reflected by industry wide product popularity is an acceptable standard for measuring Pontiac's dealer network performance.
Penetration efficiency is the percentage relationship between retail penetration in a geographic area and expected penetration. Pontiac penetration efficiency in the Comm/Terr was 66.7% of Pontiac's expected penetration in 1989, 87.4% in 1988 and 85.2% in 1987. Penetration efficiency in AGSSA 26 was slightly worse with 62.6% in 1989, 87% in 1988 and 76.5% in 1987. The penetration efficiency for SEFL-MDA was 89.8% in 1987, 99.7% in 1988 and 84.4% in 1989. While these calculations are based on retail penetration, the evidence established that the conclusions would not change significantly if fleet resales and/or bank/factory leases were included.
Even if the Comm/Terr as defined by Mr. Anderson is rejected, the evidence established that AGSSA 26 failed to meet national average penetration rates, expected penetration rates adjusted for product popularity, Florida average penetration rates or the average of Florida MDAs (excluding Tampa and the Comm/Terr). The SEFL-MDA also failed to meet any of these standards in 1987 and 1989.
The number of additional registrations necessary to raise the level of performance to the expected penetration levels would be as follows: In 1987,
145 additional sales in AGSSA 26, 560 additional sales in the Comm/Terr and 868 in the SEFL-MDA; in 1988, 82 additional sales in AGSSA 26, 484 additional sales in the Comm/Terr; in 1989, 167 additional sales in AGSSA 26, 992 sales in the Comm/Terr and 1,145 in the SEFL-MDA.
Petitioner has calculated a "lost opportunity" in the Comm/Terr which it claims could meet all of the sales expectations of the new dealership without any of the existing dealers losing any sales. The "lost opportunity" is a combination of gross registration loss (the number of registrations needed to raise each census tract within the Comm/Terr or MDA to expected penetration) and in-sell (units registered to consumers within the Comm/Terr which were sold by Pontiac dealers outside the area.) Petitioner's numerical calculations of "lost opportunity" are rejected for several reasons. First, Petitioner utilizes 1989 registration data to calculate this figure rather than three or five year averages. The 1989 year was one of the worst years for Pontiac sales in recent history. Furthermore, the calculation of gross registration loss assumes that each census tract has the expected penetration rate calculated for the area. In other words, in calculating gross registration loss, Petitioner disregards the "gain tracts" where penetration has exceeded the expected average and assumes that all of the remaining tracts have an expected penetration equal to the expected average for the area as a whole. There is no evidence to indicate that assumption is true. Indeed, the penetration rates in very small areas are likely to fluctuate.
The specific numerical calculations "lost opportunity" is rejected. However, the evidence does not support the conclusion that the new dealership will necessarily cause Colonial to loose a large number of sales. The high level of in-sells into the AGSSAs occupied by the dealers in the Comm/Terr and those dealers' inability to penetrate within four miles of their dealership indicates that there are opportunities to increase sales in the areas near those dealerships where the new dealer is not likely to make significant sales because of the distance factor. In sum, a specific "loss opportunity" has not been established, but it does not appear that existing dealers will necessarily lose a significant number of sales as a result of the addition of the New Point.
AGSSA 26 has experienced a 4.3 percent average registration growth rate from 1982-1989. This growth rate exceeded the national average which was approximately 1 percent. As discussed in more detail below, the motor vehicle industry is highly cyclical. From 1982-1987 there was a steady growth in registrations. From 1987-1988 there was a slight decrease in registrations nationally. From 1988-1989 there was a very significant decrease which appears to be continuing in 1990. The 1989 registration levels were still considerably higher than 1982. From 1983-1987, the national long term growth rate was 2.1 percent. During this same time, the growth rate in AGSSA 26 was approximately
13 percent.
Pontiac has not added a new dealer to the Comm/Terr since approximately 1960. Based upon national registration growth since 1960, there has likely been a very significant growth in registrations across the SEFL-MDA since 1960. No evidence was presented to establish the change in Pontiac's penetration rate over this time period. In 1983, Pontiac achieved 110.8 percent of its expected penetration in AGSSA 26. This efficiency has continually dropped over the subsequent years. During this time period, Chevrolet,
Chrysler-Plymouth, Hyundai, Lincoln-Mercury, Jeep Eagle, Toyota and Ford opened dealerships in AGSSA 26. The concurrence of these factors suggests that Pontiac's ability to penetrate AGSSA 26 has declined, at least in part, due to the increased convenience enjoyed by inter-brand competitors.
The Comm/Terr had 16,844 industry retail registrations per dealer in 1989 and the SEFL-MDA had 17,150. Those figures represent the largest market per Pontiac dealer in the entire state of Florida. Even with the addition of the New Point, the SEFL-MDA would have the second largest and the Comm/Terr would have the seventh largest market potential per Pontiac dealer in Florida.
An analysis of all Florida markets indicates that Pontiac averages
97.6 percent penetration effectiveness in markets with between three thousand and ten thousand industry registrations per Pontiac dealer. Only 16.7 percent of markets that exceed ten thousand registrations per dealer meet the expected penetrations. The only Florida MDA to exceed its expected penetration in 1987, 1988 and 1989 was Jacksonville, which had less than ten thousand registrations per Pontiac dealer. These facts support Petitioner's contention that the dealer network should be designed so that industry registrations per Pontiac dealer do not exceed ten thousand.
Generally, dealers in a MDA are required to make a larger investment into their facility and they face a great deal more risk due to inter-brand competition (as well as intra-brand competition.) Consequently, a dealer in a MDA is arguably entitled to greater "market opportunity" in order to ensure an adequate return on investment. Even with the addition of the New Point, existing dealers in the SEFL-MDA and the Comm/Terr will have among the largest market opportunities in the state of Florida.
Respondent contends that the SEFL-MDA, the Comm/Terr and AGSSA 26 do not meet the national average or expected penetration rates for reasons unrelated to the dealer network. Specifically, Respondent contends that the unique characteristics of the area, especially a proclivity for purchasing import vehicles and Pontiac's low "share of voice" or lack of marketing effort as compared to the competition in South Florida are the main reasons why Pontiac's penetration is below national average and/or expected.
Import penetration in the Dade County market has been approximately forty-five to fifty-five percent as compared to approximately thirty to thirty- five percent nationally. The most recent figures indicate that import dealers comprise thirty-three percent of the dealers in the nation and they garner thirty-five percent of the national market share. Locally, import dealers comprise sixty percent of the dealerships and garner fifty-four percent of the market. Petitioner points out that in 1989, .68 percent of the U.S. driving age population and .67 of all U.S. retail industry car registrations were located in the Comm/Terr, but only .10 percent of Pontiac's national dealer network was located in the area. By comparison, import manufacturers have concentrated approximately .45 percent of their national import dealer network in the Comm/Terr. Thus, at least in this area, the import manufacturers have been able to concentrate their dealership network in a manner that more closely approximates the size of the market.
Petitioner contends that the high penetration rate achieved by import manufacturers in the area is directly related to the size of the import dealer network. Respondent, on the other hand, contends that the size of the import dealer network is a direct result of the import proclivity of the local population. In essence, this is a chicken versus egg situation. Neither party has been able to establish a direct cause and effect relationship. No innate preference for imports has been established nor is their any conclusive evidence of unique product preferences that are not reflected in the expected penetration rates calculated by using the product popularity adjustment. It is concluded that at least part of the gain in import market share is attributable to the large concentration of import dealers in the area. Furthermore, it is concluded that Pontiac has not responded to the market growth in the area and the increased import dealer network.
Respondent has suggested that Pontiac's low penetration rate in Dade County may be the result of the large Hispanic population. However, no persuasive evidence was presented to substantiate this theory. Furthermore, at least one recent survey indicates that more Hispanics own Pontiac vehicles than any other brand in South Florida. While this survey does not distinguish between new and used vehicles, it does suggest that Hispanics do not have a bias against Pontiac. Finally, the evidence demonstrated that Pontiac has actually penetrated the Comm/Terr better in census tracts with predominantly Hispanic populations.
Respondent also contends that Pontiac's failure to meet national or expected penetration in the area is due largely to an inadequate "share of voice". "Share of voice" is the relative amount of media dollars being spent in the marketing base. To support its contention, Respondent cites to the benefits gained during a special local advertising effort in Palm Beach, Broward and Dade Counties in 1988. In 1987, Pontiac, at the instigation of the local dealers, agreed to make additional marketing funds available to increase the local "share of voice" from its existing three percent level. Pontiac agreed to provide 1.5 million dollars in "key market funds" to the South Florida Pontiac dealers.
These funds were provided even though advertising in a local marketing area is generally the responsibility of the area dealers. Retail sales in the Dade, Broward and Palm Beach County area increased from approximately 9,100 units in 1987 to over 12,000 in 1988. Sales within the SEFL/MDA in 1988 were just 22 units shy of the expected penetration rate (99.7 percent).
In 1989, Pontiac provided only half of the marketing funds provided in 1988. In that year, Pontiac's share of the market in the SEFL/MDA dropped to roughly 94.4 percent of expected.
Even with the increased marketing effort in 1988, penetration in the Comm/Terr and AGSSA 26 only increased to approximately 87 percent of expected.
In sum, it appears that increased advertising in 1988 helped Pontiac to achieve its expected penetration in the SEFL-MDA. However, even with increased advertising, Pontiac did not reach expected penetration in AGSSA 26. More importantly, local advertising is the responsibility of the local dealers. Thus, to the extent that the local dealers are not providing adequate advertising, Petitioner's contention that it is not receiving adequate representation is confirmed.
Factor #4
Any actions by the licensee in denying its existing dealer or dealers of the same line-make the opportunity for reasonable growth, market expansion or relocation, including the availability of line-make vehicles, in keeping with the reasonable
expectations of the licensee in providing an adequate number of dealers in the community or territory.
Prior to filing its application to open a new dealership in AGSSA 26, Pontiac had extensive discussions with the dealers in the Comm/Terr. Beginning in approximately 1987, Pontiac began looking at the possibility of opening a new point in AGSSA 25 or AGSSA 26. During these discussions, Colonial suggested the possibility of opening a satellite location in AGSSA 25. Colonial sought certain concessions from Pontiac as part of these negotiations. The parties were unable to reach an agreement regarding a satellite facility in AGSSA 25. Pontiac ultimately decided to pursue a new dealership in AGSSA 26. The evidence did not establish that Pontiac has unreasonably denied Colonial or any other dealer the opportunity for reasonable growth, market expansion or relocation.
Factor #6
Distance, travel time, traffic patterns, and accessibility between the existing dealer or dealers of the same line-make and the location of the proposed additional or relocated dealer.
The proposed New Point is approximately 7 3/4 miles from Colonial. Packer Pontiac is 5 1/2 miles from Colonial.
AGSSA 26 consumers are, on average, 7.4 miles from the nearest Pontiac dealer. If the New Point is established, customers in AGSSA 26 will be an average of 3.0 miles from the dealer. Addition of the New Point would improve customer convenience in AGSSA 26 to levels comparable to AGSSA's 21 (3.8 miles), 22 (3.2 miles), and 23 (4.1 miles).
The existing dealers in the Comm/Terr are all located close to an expressway. Aside from distance, there is no evidence of a lack of accessibility to residents in the Comm/Terr.
Factor #7
Whether benefits to consumers will likely occur from the establishment or relocation of the dealership which the protesting dealer or dealers prove cannot be obtained by other geographic or demographic changes or expected changes in the community or territory.
The wording of this subsection is extremely confusing. Apparently, the intent is to place the burden on the protesting dealers to prove that any consumer benefits from increased competition could also be obtained through demographic changes or other expected developments. Respondent has not met this burden.
The establishment of a new dealership in AGSSA 26 will certainly increase the competition among existing dealers in the Comm/Terr and the surrounding AGSSAs. The new dealership will provide additional employment opportunities, enhance comparison shopping and provide incentives for efficiency, improved service, increase model selection and reasonable pricing.
Respondent contends that the addition of a new dealership will work to the detriment of the consumers because one or more of the dealerships in the area will be closed as the result of the severe financial impact. As discussed above, the evidence did not establish that Colonial or any other dealer would be forced to close as a result of the opening a new dealership in AGSSA 26.
Factor #9
Whether there is adequate inter-brand and intra-brand competition with respect to said line-make in the community or territory and adequately convenient consumer care for the motor vehicles of the line-make, including the adequacy of sales and service facilities.
Pontiac convenience in AGSSA 26 is worse than 17 of its competitors. The addition of a Pontiac dealer in AGSSA 26 would provide Pontiac customers convenience commensurate with the convenience offered by competitive line-makes. Further, the customer convenience offered by Pontiac in AGSSA 26 would be twice as good as the convenience currently offered and would be consistent with convenience offered by Pontiac in AGSSAs 21 and 23. Pontiac's lack of competitive convenience in AGSSA 26 is one of the reasons for its inadequate retail market penetration. As indicated in Findings of Fact 74 above, the Pontiac dealer network has not grown with the market and the competition from import dealers has become fierce. The addition of the New Point will enable Pontiac to more effectively compete in the local market.
There are approximately 120 auto dealerships in Dade County. In the Comm/Terr, Chevrolet has 4 dealerships, Buick has 2, Cadillac has 3, Chrysler- Plymouth has 4, Pontiac has 3, Jeep/Eagle has 4, Lincoln-Mercury has 4, Ford has 6, Oldsmobile has 2, Dodge has 2, and GMC Trucks has 2. The addition of a new Pontiac dealership would be consistent with the dealer network of other domestic manufactures.
As indicated in Findings of Fact 72 above, several inter-brand competitors have opened new dealerships in AGSSA 26. Since a dealer penetrates best in the area immediately surrounding the dealership, the opening of the New Point will better enable Pontiac to keep pace with the competition.
Pontiac sales performance and the satisfaction of Pontiac consumers in the area will likely benefit from additional competition. Competition maximizes consumer welfare and promotes public interest by making businesses operate efficiently, providing enhanced consumer choice, quality of service and prices.
Respondent points to the positive contractual sales evaluation given by General Motors to existing dealers in the SEFL-MDA as evidence that the existing dealer network is providing adequate representation. The basis and significance of these evaluations has not been fully explained. Notwithstanding these evaluations, two of the three dealers in the Comm/Terr are on dealer assistance programs because of poor sales performance. In addition, the sales evaluation assesses the effectiveness of market penetration in the MDA based on total registrations, including fleet sales and sales outside the area. Therefore, these evaluations do not indicate the adequacy of representation in the retail market at issue here. Furthermore, the evaluation of registration effectiveness does not consider in-sells by Pontiac dealers outside the area and, thus, does not evaluate the adequacy of performance by the existing dealers within the MDA. Finally, the contractual evaluation does not measure performance in AGSSA 26. Therefore, these evaluations have not been shown to be of any importance in this case.
Factor #10
Whether the establishment or relocation of
the proposed dealership appear to be warranted and justified based on economic and marketing conditions pertinent to dealers competing in the community or territory including anticipated future changes.
Without question, economic conditions have changed drastically in the automobile industry since 1987 when Pontiac decided to seek additional representation in Dade County. Beginning sometime in mid to late 1988, the automotive industry entered into a very significant down cycle. The down cycle has continued through the date of the hearing in this cause. Domestic line- makes, including Pontiac, have been hit hardest by this down turn.
U.S. new car registrations have followed a cyclical but rising long term trend from 1946 through 1989. While the current decline is one of the worst cycles experienced during this time period, fluctuations are quite normal and similar severe declines have been experienced in the past. Forecasts by leading automotive analysts reflect an expectation of an increase in total car registrations from 1991-1995. There is no evidence of any industry registration forecast predicting a continued decline. In sum, the existing decline in the
automotive industry does not provide sufficient justification for denying Pontiac the opportunity to cure the existing inadequacy of its dealer network by adding the New Point.
There is no doubt that some existing dealers, including Pontiac dealers, have been suffering as a result of the current decline. While Respondent presented evidence regarding several dealerships that have closed and/or that are in financial trouble, operational problems and other unrelated business matters are responsible for much, if not all, the problems being experienced by several of those dealers.
The evidence did not demonstrate that any of the dealership problems are directly related to lack of market opportunity.
None of the Pontiac dealers in Southeast Florida have closed. While representatives of Colonial, Hallett and Packer testified as to the significant impacts that the current down cycle has had on their businesses, the evidence indicates that all three of those companies made significant profits in 1987 and 1988. There is no dispute that Colonial has had to significantly restructure in order to remain profitable during the current cycle. Colonial has reduced rent payments and has paid little compensation to its general manager and owner. During the first six months of 1990, Colonial has been able to make a respectable profit even in the face of declining sales.
General Motors is in the process of putting together a dealer network for a new line-make, Saturn. This new product will likely be a direct competitor with Pontiac. This new product will likely increase inter-brand competition. However, this increase in competition does not justify denying Pontiac the opportunity to attempt to correct the existing inadequacy in its dealer network.
Respondent contends that poor economic conditions both nationally and locally warrant the denial of the application for the New Point. The contention that the economic health of Dade County is deteriorating more quickly than the national economy is rejected. Respondent has cited to an increase in unemployment rates in Dade County, a slight decline in home sales, and a decline in Dade County's share of U.S. retail sales from 1988 to 1989 as proof of the poor economic condition in the area. However, this evidence is inconclusive at best. Unemployment rates have limited benefit for short-term economic analysis and do not provide an adequate standard for evaluating market potential for new cars. Recent declines in certain economic indicators appear to be an adjustment to the rapid growth that has occurred in Dade County over the last decade.
With the exception of 1988, Dade County's 1989 share of U.S. retail sales is higher than any year since 1982. From 1986 through 1989, retail sales in Dade County increased on average 28 percent as compared an increase of 20 percent nationally. While there was a slight decline from 1988 to 1989, this decline appears to be a moderation of the phenomenal growth that has occurred over the last four years.
The best measures of the growth and health of a local economy are population growth, job growth and income growth. The most reliable economic projections for Dade County anticipate continued consistent growth in population, jobs and income from 1990 to 2000. Jobs are expected to grow at an average compound rate of 1.3 percent and real personal income adjusted for inflation is expected to grow 1.9 percent per year.
Employment growth, which is a good measure for evaluating market potential for new cars, has increased substantially in Dade County over the last ten years. From April 1989 to April 1990, Dade County employment growth exceeded employment growth in the United States.
The population projections utilized by the State of Florida estimate AGSSA 26's 1989 population at 252,197, an increase of 22.4 percent or 46,187 persons since 1980. This is more than twice the percentage increase in the U.S. for the same time period. Dade County grew by almost a quarter of a million people from 1982-1989. AGSSA 26 grew even faster, increasing from 12.67 percent of the total county population in 1980 to 13.46 in 1989. Based on the most accurate date and techniques available, Dade County will continue growing rapidly through the year 2000. AGSSA 26 is expected to grow by 52,278 persons between 1989 and 2000, considerably higher than the percentage increase forecast for the rest of the country. All of the AGSSAs in the Comm/Terr have experienced similar growth, with most of the growth occuring inland where the proposed New Point is located. Pontiac's dealerships are located along the coast. As indicated above, Pontiac has not added a dealer in the Comm/Terr. in over 30 years. In other words, Pontiac's dealer network has not expanded to follow the tremendous growth that has occured in the area. AGSSA 26 has no low income areas and contains a reasonable mix of upper and middle income neighborhoods. These demographic factors should be conducive to selling more new motor vehicles.
While it is well known that national economic conditions are not ideal, it appears that the economy of Dade County will survive the recession better than most areas of the country.
As indicated above, the automobile industry is highly cyclical. While this may not be the most desirable time for adding a new dealership, the evidence did not demonstrate that economic conditions warrant the denial of Pontiac's application to open the New Point in order to correct a deficiency in an existing dealer network.
Factor #11
The volume of registrations and service business transacted by the existing dealer or dealers of the same line-make in the relevant community or territory of the proposed dealership.
Without question, Colonial registers a number of cars and provides a significant amount of service business in the SEFL-MDA, the Comm/Terr and AGSSA
Respondent offered an analysis to demonstrate the number of sales and the extent of service business which it attributed to AGSSA 26. As discussed above, there were several problems with the methodology employed by Respondent and the calculations as to loss sales and loss service business are rejected as not supported by persuasive evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes (1989).
Section 320.642, Florida Statutes (1989) governs General Motors' request to establish the New Point and requires proof that existing Pontiac dealers are not providing adequate representation in the "community or territory" of the proposed dealership.
Section 320.642, was initially enacted in 1970. Under the 1970 statute, a manufacturer was entitled to add a dealer where the facts demonstrated either (1) the existing dealers in the community or territory were not in compliance with their dealer agreements, or (2) the existing dealers in the community or territory were not providing adequate representation.
During the 1988 legislative session, Section 320.642 was substantially modified. However, even under the new version of the statute, the key question is whether the existing dealer or dealers are providing adequate representation in the appropriate community or territory. The 1988 statute lists eleven factors, which are not necessarily all inclusive, that may be considered in determining whether existing dealers are providing adequate representation. The weight to be accorded each criterion and the consequent balancing of the criteria will vary, however, depending on the facts and circumstances of each case. See, e.g., Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981); Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985).
Petitioner contends that, since adequate representation is still the bench-mark, the 1988 statute has not significantly changed the analysis that was conducted under the old statute to determine whether a new dealership is warranted. Respondent, on the other hand, argues that the 1988 statute has significantly rewritten the equation. In this regard, it is noted that evidence regarding the financial impact of the opening of a new dealership on existing dealers was irrelevant under the old statute. See, Stewart Pontiac Company v. Department of Highway Safety and Motor Vehicles, 511 So.2d 660 (Fla. 4th DCA 1987). However, such financial impact is specifically included as one of the factors that can be considered under the new statute. See, Section 320.642(2)(b)1, Florida Statutes (1989). Thus, it must be concluded that the legislature intended some modification from the analysis conducted under the prior law.
The purpose of Section 320.642 is to prevent manufacturers from establishing more dealerships than a market can support. Plantation Datsun, Inc. v. Calvin, 275 So.2d 26 (Fla. 1st DCA 1973). Section 320.642 was not enacted "to foster combinations to prevent the introduction of dealer competition which is reasonably justified in terms of market potential." Bill Kelly Chevrolet, Inc. v. Calvin, 322 So.2d 50, 52 (Fla. 1st DCA 1975) cert. denied 336 So.2d 1180. In other words, Chapter 320 is not designed to protect competitors, but rather to preserve competition. The Legislature expressed its goals in enacting the 1988 version of Section 320.642. Those goals are to protect the welfare of Florida citizens by: (1) maintaining competition; (2) providing consumer protection and fair trade; and (3) providing minorities with opportunities for full participation as motor vehicle dealers in the community. Section 320.605 (1989). The addition of the Duhaney dealership in AGSSA 26 will advance each of the stated legislative goals by providing additional minority competition with coincident consumer benefits such as enhanced output, service and prices.
The burden of proof is on Petitioner to establish that its currently licensed dealers in the "community or territory" are not providing adequate representation therein. See Section 320.642, Florida Statutes (1988).
Since Section 320.642 does not define "community or territory," it must be determined according to the facts presented at the hearing. Anthony Abraham Chevrolet Co. v. Collection Chevrolet, Inc. 533 So.2d 821, (Fla. 1st DCA 1988); Seacrest Cadillac, Inc. v. Larry Dimmitt Cadillac, Inc., DOAH Case No. 88-2252 (Fla. DHSMV 1989), aff'd Larry Dimmitt Cadillac, Inc. v. Seacrest Cadillac, Inc. 558 So.2d 136 (Fla. 1st DCA 1990) (community or territory defined according to consumer behavioral data).
The "community or territory" is an "identifiable plot not yet cultivated, which could be expected to flourish if given the attention which the others in their turns received." Bill Kelley Chevrolet, Inc. v. Calvin, 322 So.2d 50, (Fla. 1st DCA 1975). In determining the relevant community or territory, the area described in the contract is a material fact entitled to "great weight" but is not conclusive. Bill Kelley Chevrolet, Inc. v. Calvin,
308 So.2d 199, 201 (Fla. 1st DCA 1974); Larry Dimmitt Cadillac, Inc. v. Seacrest Cadillac, Inc., supra. Where exceptional conditions exist, the parties may show separate market areas exist within an MDA. Id.
Distinct areas within the MDA may constitute the community or territory based on consumer behavior patterns, such as limited cross sell, establishing separate markets. See, Stone Buick, et al v. Bayview Buick GMC Truck, Inc., DOAH Case No. 88-5663 (Fla. DHSMV 1990) (Clearwater area deemed community or territory instead of entire MDA based on limited cross-sell with Port Richey and St. Petersburg); See, also, Ed Morse Chevrolet of Seminole, Inc. v. Jim Quinlan Chevrolet, Inc., DOAH Case No. 88-3523 (Fla. DHSMV 1989), aff'd, per curiam, 563 So.2d 640 (Fla. 2d DCA 1990).
Petitioner contends that the Comm/Terr developed by Mr. Anderson based on an analysis of consumer behavior and cross-sell patterns should be the "community or territory" for purposes of this case because it is allegedly a well-connected market distinct from the rest of the SEFL-MDA. Respondent pointed out several problems with this conclusion. After considering the evidence, it is concluded that the Comm/Terr is not an appropriate commuunity or territory. The sheer volume of cars sold by J. M. Pontiac to customers in Dade rebuts the contention that the Comm/Terr is a distinct market separate from the rest of the SEFL-MDA. The rejection of the Comm/Terr as the community or territory is not fatal to Petitioner's case. The SEFL-MDA can properly be considered the community or territory. Pontiac's representation was not adequate in the SEFL-MDA in the years 1987 and 1989. While the SEFL-MDA achieved expected penetration in 1988, it was only after Pontiac spent significant extra money on local advertising.
As noted above, inadequate representation may be demonstrated in the community or territory as a whole, or in an identifiable plot within the community or territory. Bill Kelley Chevrolet v. Calvin, 322 So.2d 50, 52 (Fla. 1st DCA 1975) cert. denied 336 So.2d 1180 (Fla. 1976). AGSSA 26 is an identifiable plot within the community or territory where Pontiac is not currently receiving adequate representation. Pontiac has not received adequate representation in AGSSA 26 in 1987, 1988 or 1989.
Pontiac's reasonably expected market penetration in the community or territory and AGSSA 26 was determined by adjusting Pontiac's national average market share to account for local product popularity (the "expected penetration standard.") This adjustment measures demand based on actual local consumer purchases and attempts to account for local demographic factors affecting consumers' purchase decisions. This approach has previously been accepted by
the Department in several cases. See, Stone Buick, et al, supra; Stella Chevrolet and Chevrolet Motors Division, General Motors Corporation v. Roberts Chevrolet, Inc., Nimnicht Chevrolet Company and The Department of Highway Safety and Motor Vehicles, DOAH Case No. 88-3099 (Fla. DHSMV 1990).
Separate analysis of age and income confirms the reasonableness of the expected penetration standard. Education was not specifically addressed by either party. Retail lease transactions and rental fleet resales were not shown to justify any deviation from the expected penetration standard.
Respondent did not calculate or offer into evidence any alternative reasonable penetration standard.
Respondent claims import competition, a large Hispanic population, and an allegedly weak economy should affect the standard used. The evidence did not, however, establish that any of these factors provide a basis for rejecting the expected penetration calculated by using national averages market share adjusted for local product popularity.
Pontiac performance in AGSSA 26 from 1987 through 1989 has been well below reasonably expected levels. AGSSA 26 has the lowest Pontiac penetration of any AGSSA in the SEFL-MDA. Pontiac penetration is so poor in this area that it fails to meet any standard discussed or suggested in this case: national average, the expected penetration standard, Florida's state average, or the average of the Florida MDAs (excluding Tampa and the Comm/Terr). In addition, Pontiac penetration was below expected levels in the SEFL-MDA in 1987 and 1989, and in the Comm/Terr in 1987-1989.
The SEFL-MDA has experienced considerable economic and market growth since Pontiac last added a dealer over thirty years ago. Driving age population, households, jobs, income and new car registrations have all expanded substantially and rapidly in that time, especially in AGSSA 26. During that time, entire import dealer networks have been added to the area, thereby substantially increasing interbrand competition for the existing Pontiac dealers.
No Pontiac franchises in the area have gone out of business. Recent losses on the operating reports of some of the dealers are balanced by very large profits in the immediately preceding years and appear to reflect the cyclical nature of the automobile industry.
To the extent the Dade County economy and new car market has slowed, it appears to be a short-term fluctuation in what has historically been a growth industry. Most industry forecasts project registrations, AGSSA 26's population and Dade County's population and economy to grow through at least the year 2000. The addition of a new Pontiac dealership is justified by the growth that has occurred since Pontiac last added a dealer in the area and by projections for future growth.
The existing Pontiac dealer's ability to penetrate the market diminishes with distance. They are so far from AGSSA 26 that they cannot compete effectively with non-Pontiac dealers located there.
Interbrand competitors in AGSSA 26, offering greater convenience to AGSSA 26 consumers, has resulted in inadequate Pontiac interbrand competition in AGSSA 26. This phenomena is reflected in Pontiac's low market share and declining effectiveness in AGSSA 26. Pontiac is currently unable to offer adequate interbrand competition in AGSSA 26.
The market opportunity per Pontiac in AGSSA 26, and the SEFL-MDA establishes a need for increased Pontiac competition. The failure of the existing dealers to reach minimum expected market share, and the substantial in- sell into the SEFL-MDA and AGSSA 26 from Pontiac dealers outside these areas indicates that there is untapped market opportunity available.
Financial impact on the protesting dealer must be analyzed as it relates to determining adequacy of representation. If another dealer is justified based on sufficient uncaptured market potential, there is no reason to expect an existing dealer will lose sales. Moreover, the manufacturer is not statutorily required to prove an absence of any financial impact on the protesting dealer. Thus, even if the protesting dealer establishes some lost sales and a resulting financial impact to its dealership, the Application does not automatically have to be denied.
In any event, Respondent did not offer persuasive evidence that significant lost sales will likely result from the addition of a new Pontiac dealer. Moreover, Respondent's financial impact analysis based on assumed lost sales contained numerous flaws which rendered it unpersuasive. Finally, given the market opportunity available, any financial impact that may result from the additional dealer does not warrant the exclusion of additional needed competition in AGSSA 26.
Pontiac is currently losing substantial available sales each year due to the existing Pontiac dealers' inability to penetrate the market at reasonably expected levels. The addition of a Pontiac dealer in AGSSA 26 will make Pontiac more competitive, and enable it to capture a more reasonable share of the local market.
Respondent suggests that Pontiac denied Colonial a reasonable opportunity for reasonable growth or market expansion under Section 320.642(2)(b)(4). The record did not clearly establish what transpired during the negotiations over the proposed New Point. Colonial was given an opportunity to relocate. Colonial did not accept this opportunity. Colonial subsequently sought approval to open a satellite which was in essense a request to be named the candidate for an add point. Pontiac is not obliged under Chapter 320 to give all add points to existing dealers. Indeed, such a requirement would be contrary to the legislative intent of providing competition and opportunities to minorities and would potentially saddle the manufacturer with dealerships owned by dealers who are currently providing inadequate representation. The evidence was insufficient to establish that Pontiac denied Colonial a reasonable opportunity for market expansion.
The eleven factors listed in Section 320.642 must be considered in light of the controlling question of whether the existing dealers are providing adequate representation. Without question, the addition of a new dealership at this point in time is risky given the current decline in the automobile industry. However, the industry has traditionally been cyclical. Nothing in the statute limits a manufacturer to opening a new point only during an up swing in the industry. Indeed, such a requirement would place an impossible burden on a manufacturer to anticipate future trends. The evidence in this case indicates
that Pontiac's poor penetration and lack of adequate representation exists independent of the current down cycle. Once inadequate representation has been shown, as it has been in this case, it is largely a business decision on the part of the manufacturer as to when, or if, to open a new dealership.
Balancing the factors listed in Section 320.642 into consideration, the existing Pontiac dealers are not adequately representing Pontiac in the SEFL-MDA or AGSSA 26.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued approving the Petitioner's application to establish a new Pontiac dealership 700 feet west of the intersection of 59th Avenue and Palmetto Access Road, on the south side of the Palmetto Expressway, Dade County, Florida.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of August, 1991.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1991.
ENDNOTES
1/ Subsequent to the hearing, a Stipulation for Substitution of counsel was filed pursuant to which the law office of James D. Adams, Esquire assumed representation of Respondent and the law firm of Feaman, Adams & Fernandez, P.A., was relieved of further responsibility in this case.
2/ In view of the findings made in Findings of Fact 28 below, the surrebuttal evidence which Respondent seeks to offer would be of minimal importance.
3/ Fleet sales are sales to a purchaser who buys ten or more cars per year.
APPENDIX TO RECOMMENDED ORDER
Both parties have submitted Proposed Recommended Orders including proposed findings of fact and conclusions of law. The following constitutes my ruling on each of the parties proposed findings of fact.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted
or Reason for Rejection
Adopted in substance in Findings of Fact 1, 2 and 4.
Adopted in substance in Finding of Fact 7.
Subordinate to Finding of Fact 10.
Adopted in substance in Finding of Fact 11.
Subordinate to Findings of Fact 13-22.
Subordinate to Findings of Fact 16, 17, 63 and 65.
Subordinate to Findings of Fact 17 and 18.
Subordinate to Findings of Fact 17 and 18.
Subordinate to Findings of Fact 19 and 21.
Subordinate to Finding of Fact 22.
Subordinate to Findings of Fact 47 and 49.
Subordinate to Findings of Fact 50-52.
Subordinate to Findings of Fact 53, 54 and 57.
Subordinate to Finding of Fact 56.
Subordinate to Finding of Fact 57.
Subordinate to Finding of Fact 59.
Subordinate to Finding of Fact 60.
Subordinate to Finding of Fact 61.
Subordinate to Finding of Fact 62.
Subordinate to Finding of Fact 63.
Adopted in substance in Finding of Fact 63.
Subordinate to Finding of Fact 65.
Subordinate to Findings of Fact 14 and 22.
Subordinate to Findings of Fact 62 and 64.
25-30. Adopted in pertinent part in Findings of Fact 100-103.
Adopted in substance in Findings of Fact 68 and 69.
Subordinate to Findings of Fact 69 and 102. 33-34. Subordinate to Findings of Fact 70 and 71.
Rejected as unnecessary.
Subordinate to Findings of Fact 82 and 83.
Adopted in substance in Finding of Fact 36.
Subordinate to Finding of Fact 36.
39-42. Subordinate to Findings of Fact 35 and 65-67.
Rejected as unnecessary and speculative.
Subordinate to Finding of Fact 34.
Subordinate to Findings of Fact 34-37 and 65-67.
Adopted in substance in Finding of Fact 35.
Subordinate to Finding of Fact 91.
Subordinate to Finding of Fact 91.
Subordinate to Finding of Fact 91.
50-53. Subordinate to Findings of Fact 30-34.
Subordinate to Finding of Fact 34.
Rejected as unnecessary and as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 12-21.
Subordinate to Findings of Fact 54 and 62.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Subordinate to Finding of Fact 75.
Adopted in substance in Finding of Fact 74.
Subordinate to Finding of Fact 31.
Subordinate to Findings of Fact 69 and 75.
Subordinate to Finding of Fact 76.
Adopted in substance in Findings of Fact 77-80.
Adopted in substance in Finding of Fact 62.
Adopted in substance in Findings of Fact 69 and 94.
Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 99-104.
Subordinate to Finding of Fact 103.
Adopted in substance in Findings of Fact 100 and 101.
Subordinate to Finding of Fact 99.
Subordinate to Finding of Fact 101.
Subordinate to Finding of Fact 102.
Adopted in substance in Finding of Fact 102.
Subordinate to Findings of Fact 99 and 104. 77-78. Subordinate to Findings of Fact 95 and 96.
Subordinate to Finding of Fact 97.
Rejected as unnecessary. The subject matter is addressed to some extent in Finding of Fact 31.
Rejected as unnecessary.
Adopted in substance in Finding of Fact 92.
83-91. Rejected as unnecessary. The subject matter is addressed in Findings and Fact 28 and 29.
Subordinate to Findings of Fact 42 and 43.
Subordinate to Finding of Fact 97.
Subordinate to Finding of Fact 97.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted
or Reason for Rejection
Adopted in substance in Finding of Fact 1.
Adopted in substance in Finding of Fact 3.
Adopted in substance in Findings of Fact 8 and 23. 4-6. Adopted in substance in Findings of Fact 24-26.
7-9. Rejected as unnecessary and as constituting argument.
10. Rejected as unnecessary.
11-13. Subordinate to Findings of Fact 28 and 29.
Adopted in substance in Finding of Fact 35.
Rejected as not supported by the evidence. The subject matter is addressed in Findings of Fact 28 and 29.
The first sentence is rejected as vague and unnecessary. The second sentence is rejected as not supported by the evidence.
Subordinate to Finding of Fact 28.
18-21. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 28.
22-24. Subordinate to Finding of Fact 97.
Rejected as unsupported by the evidence. The subject matter is addressed in Findings of Fact 29 and 34.
Subordinate to Findings of Fact 29 and 35.
Rejected as irrelevant and unnecessary.
28-30. Subordinate to Findings of Fact 66 and 67.
31. Rejected as unnecessary.
32-33. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 28.
Subordinate to Finding of Fact 30.
Subordinate to Findings of Fact 30-33.
Rejected as unsupported by the evidence.
Adopted in substance in Findings of Fact 39-42.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Subordinate to Findings of Fact 19-21.
Subordinate to Findings of Fact 54 and 71-80.
Subordinate to Findings of Fact 73-75.
Rejected as unnecessary.
45.-48. Subordinate to Findings of Fact 77.
49.-50. Rejected as unnecessary and irrelevant.
Subordinate to Findings of Fact 77 and 79.
Subordinate to Findings of Fact 78.
Rejected as unnecessary and irrelevant.
Subordinate to Findings of Fact 79.
Subordinate to Findings of Fact 92.
Rejected as unnecessary and constituting argument. 57.-62. Rejected as unnecessary and constituting argument.
63. Subordinate to Findings of Fact 51-54 and 79.
64.-65. Rejected as unnecessary and constituting argument.
Subordinate to Findings of Fact 14.
Subordinate to Findings of Fact 18.
Subordinate to Findings of Fact 14-21.
Subordinate to Findings of Fact 14.
Rejected as unnecessary. This subject matter is addressed in Findings of Fact 14-21.
Adopted in substance in Findings of Fact 14.
Suborindate to Findings of Fact 14.
Rejected as unnecessary and irrelevant. This subject matter is addressed in Findings of Fact 49.
Suborindate to Findings of Fact 47.
Suborindate to Findings of Fact 59.
Suborindate to Findings of Fact 59.
Rejected as vague, ambiguous and irreleveant.
Rejected as unnecessary and constituting argument.
Rejected as irrelevant and unnecessary.
Subordinate to Findings of Fact 60.
Rejected as unnecessary.
Subordinate to Findings of Fact 60 and 80.
Rejected as irrelevant.
Subordinate to Findings of Fact 75.
Rejected as unsupported by the evidence. 86.-88. Subordinate to Findings of Fact 81.
Subordinate to Findings of Fact 82-84.
Adopted in substance in Findings of Fact 82.
Rejected as unnecessary and irrelevant.
Subordinate to Findings of Fact 82-84.
93-94. Rejected as unnecessary.
Rejected as not supported by the evidence and subordinate to Findings of Fact 28 and 29.
Rejected as unnecessary.
Rejected as not supported by the evidence.
Subordinate to Findings of Fact 88.
The first sentence is rejected as not supported by the evidence. The second sentence is rejected as irrelevant and unnecessary.
Rejected as unnecessary and as constituting argument.
Rejected as unnecessary.
Rejected as unnecessary and as constituting argument.
Rejected as unnecessary. This subject matter is addressed in Findings of Fact 82.
Rejected constituting argument.
Rejected as unnecessary and as constituting argument.
Subordinate to Findings of Fact 92.
Subordinate to Findings of Fact 93-105.
Subordinate to Findings of Fact 94.
Rejectes as a summary of testimony rather than a finding of fact.
Subordinate to Findings of Fact 105.
Rejectes as a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 94.
Rejected as unnecessary and irrelevant.
Subordinate to Findings of Fact 94.
Subordinate to Findings of Fact 95 and 96.
Rejected as unnecessary and irrelevant.
Subordinate to Findings of Fact 93.
Rejected as unnecessary and as constituting argument.
Subordinate to Findings of Fact 94.
Subordinate to Findings of Fact 94.
Subordinate to Findings of Fact 94 and 98.
Subordinate to Findings of Fact 98.
Subordinate to Findings of Fact 94 and 95.
123.-124. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 94 and 95.
125. Subordinate to Findings of Fact 95.
126.-137. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 95.
138. Subordinate to Findings of Fact 94 and 105.
139.-143. Subordinate to Findings of Fact 93, 94 and 68.
Subordinate to Findings of Fact 99.
Subordinate to Findings of Fact 99.
Rejected as constituting argument.
Subordinate to Findings of Fact 106.
COPIES FURNISHED:
Michael J. Alderman, Esquire Department of Highway Safety
and Motor Vehicles Neil Kirkman Building
Tallahassee, Florida 32399-0500
James D. Adams, Esquire Corporate Plaza, Fourth Floor 4700 N.W. Second Avenue
(Boca Raton Boulevard) Boca Raton, Florida 33431
Trevor G. Duhaney
1711 N.W. 119th Terrace Pembroke Pines, Florida 33024
James Williams, Esquire Office of General Counsel General Motors Corporation New Center, One Building 3031 West Grand Boulevard Detroit, Michigan 48232
Vasilis C. Katsafanas, Esquire Rumberger, Kirk et. al
11 East Pine Street Post Office Box 1873 Orlando, Florida 32802
Dean Bunch, Esquire Rumberger, Kirk, Caldwell,
Cabiness, Burke & Wechscler
106 East College Avenue Tallahassee, Florida 32301
Charles J. Brantley, Director Division of Motor Vehicles
Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500
Enoch Jon Whitney General Counsel
Department of Highway Safety and Motor Vehicles
Neil Kirkman Building Tallahassee, Florida 32399-0500
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
GENERAL MOTORS CORPORATION/ PONTIAC MOTORS DIVISION and TREVOR H. DUHANEY,
Petitioner,
vs. CASE NO. 89-6832
COLONIAL PONTIAC, INC.,
and THE DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
/
FINAL ORDER
This matter came before the Department for entry of a Final Order upon submission of a Recommended Order by J. Stephen Menton, a Hearing Officer of the Division of Administrative Hearings. Subsequent to the submissions of the Recommended Order, Respondent Colonial Pontiac, Inc., timely filed Exceptions to the Order, /1 and Petitioner General Motors Corporation filed a Response to the Exceptions. Respondent Colonial Pontiac, Inc., also filed a Motion for Final Order in Favor of Respondents, and Petitioner General Motors filed a response thereto.
RULING ON MOTION FOR FINAL ORDER
Respondent Colonial Pontiac, Inc., has moved, in effect, that Petitioner Trevor Duhaney be denied a license as a Pontiac franchise dealer because Alan Potamkin has withdrawn his name as an investor in the proposed dealership.
Although Section 320.642(1)(d), Florida Statutes, does mandate that the name of the principal investors be included in the required notice, the identity of the investors is not a statutory ground for license denial. Rather, Section 320642(2)(a) provides that an application for licensing shall be denied when a timely protest is received from a dealer with standing to protest and the licensee (e.i., the manufacturer, distributor or importer) fails to show that the existing franchise dealers are not providing adequate representation.
Accordingly, the Respondent's motion is DENIED.
RULING ON RECOMMENDED ORDER
The Department hereby adopts the Recommended Order as its Final Order in this matter. Accordingly, it is ADJUDGED that Petitioner Trevor H. Duhaney, be granted a license as a franchise Pontiac dealer upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules.
DONE and ORDERED this 29th day of January, 1992, in Tallahassee, Leon County, Florida.
CHARLES J. BRANTLEY, Director
Division of Motor Vehicles Department of Highway Safety and Motor Vehicles
Neil Kirkman Building Tallahassee, Florida 32399
Filed with the Clerk of the Division of Motor Vehicles
this 29th day of January, 1992.
ENDNOTE
1/ These exceptions are ruled on in the Appendix to this Order.
NOTICE OF APPEAL RIGHTS
Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate- district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure.
COPIES FURNISHED:
James D. Adams, Esquire Corporate Plaza, Fourth Floor 4700 N.W. Second Avenue (Boca Raton Boulevard)
Boca Raton, Florida 33431
Trevor G. Duhaney
1711 N.W. 119th Terrace Pembroke Pines, Florida 33024
James Williams, Esquire Office of General Counsel General Motors Corporation New Center, One Building 3031 West Grand Boulevard Detroit, Michigan 48232
Vasilis C. Katsafanas, Esquire Rumberger, Kirk et. al
11 East Pine Street
P.O. Box 1873
Orlando, Florida 32802
Dean Bunch, Esquire
Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301
Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles
Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504
Stephen Menton, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Freddie Duggar Florida Administrative Law Reports Post Office Box 385
Gainesville, Florida 32602
APPENDIX TO FINAL ORDER
RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER
Rejected. The Hearing Officer did not consider the minority status of the applicant in determining adequacy of representation.
Rejected. A review of the Recommended Order shows that the Hearing Officer considered all relevant statutory factors upon which evidence was presented in determining adequacy of representation.
Rejected. The Hearing Officer properly rejected Respondent's proposed findings 7 through 9 in light of the Hearing Officer's conclusions that the proposed dealership would not have a devastating financial impact on the Respondent and would not have a significant sales impact on existing Pontiac dealers.
Rejected. The Hearing Officer properly found that Respondent's Proposed Findings of Fact 11 through 13 were subordinate to Findings of Fact 28 and 29.
Rejected. The Hearing Officer properly rejected Respondent's Proposed Finding of Fact 27. An expert witness's opinion as to whether the impact on existing dealers should be considered in determining adequacy of representation is irrelevant and unnecessary.
Rejected. The Finding of Fact is based on substantial competent evidence.
Rejected. The Hearing Officer found inadequate representation in the community or territory as a whole.
Rejected. The Hearing Officer correctly excluded evidence on the qualifications of the applicant.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA
COLONIAL PONTIAC, INC., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
V. CASE NO. 92-535
DOAH CASE NO. 89-6832
GENERAL MOTORS CORPORATION/ PONTIAC MOTORS DIVISION,
Appellee.
/ Opinion filed March 8, 1993.
An appeal from an order of the Department of Highway Safety & Motor Vehicles. James D. Adams, of Adams & Quinton, P.A., Boca Raton, for appellant.
James J. Williams, Office of General Counsel, General Motors Corporation, Detroit; and Vasilis C. Katsafanas, of Cabaniss, Burke & Wagner, Orlando, for appellee.
WIGGINTON, J.
We affirm the final order of the Department of Highway Safety and Motor Vehicles to the extent it adopts the findings of fact and conclusions of law in the hearing officer's recommended order approving appellees' application to establish a new Pontiac dealership in Dade County. However, because it was not relevant to the proceedings below, conducted pursuant to section 320.642, Florida Statutes, we are not concerned with the remaining language in the final order holding that the proposed dealer be granted a franchise license upon compliance with all applicable requirements of section 320.27, and all applicable department rules. Such language is clearly gratuitous and cannot be read as granting an entitlement to a license absent further action on the department's part pursuant to section 320.27.
AFFIRMED.
MINER and WOLF, JJ., CONCUR.
| Issue Date | Proceedings |
|---|---|
| Feb. 20, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Jan. 30, 1992 | Final Order filed. |
| Aug. 21, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held Aug. 20-24, 1991 & Aug. 27-31, 1991. |
| Aug. 12, 1991 | Order Granting Substitution of Counsel sent out. |
| Aug. 02, 1991 | Stipulation For Substitution of Counsel w/(unsigned) Order For Susbstitution of Counsel filed. (From James D. Adams) |
| Feb. 20, 1991 | (Petitioner) Notice of Change of Address (from D. Bunch) filed. |
| Dec. 26, 1990 | cc General Motors Corporation's Memorandum in Opposition to Respondent's Motion to Compel Deposition Testimony and for Leave to Offer Additional Surrebuttal Evidence (+ exh A) filed. |
| Dec. 17, 1990 | (respondent) Motion to Compel Deposition Testimony and for Leave to Offer Additional Surrebuttal Evidence and Response to GM's Motion to Close Record (+ exh 1-4) filed. |
| Dec. 12, 1990 | Final Argument filed. (From J. D. Adams) |
| Dec. 10, 1990 | General Motors Corporation's Proposed Recommended Order; Appendix to General Motors Corporation's Proposed Recommended Order filed. (From J. J. Williams & V. c. Katsafanas) |
| Dec. 10, 1990 | (unsigned) Recommended Order filed. |
| Dec. 06, 1990 | Petitioner, General Motors Corporation's Submission For The Record ofThe Testimony of James A. Anderson and Thomas Mann and Motion to Close Record w/exhibits A&B filed. (From D. Bunch) |
| Nov. 13, 1990 | Order Granting Motion for Extension of Time to File Recommended Orderand Final Argument sent out. |
| Oct. 31, 1990 | (GM) Response to Respondent's Motion For Extension of Time to File Recommended Order filed. (From Vasilis C. Katsafanas) |
| Oct. 31, 1990 | (Revised) (Petitioner's) Response to Respondent's Motion For Extension of Time to File Recommended Order filed. (from Vasilis C. Katsafanas) |
| Oct. 31, 1990 | (GM) Response to Respondent's Motion For Extension of Time to File Recommended Order filed. (from Vasilis C. Katsafanas) |
| Oct. 29, 1990 | (Respondent) Motion for Extension of Time to File Recommended Order and Final Argument w/exhibit-1 filed. (From James D. Adams) |
| Sep. 21, 1990 | Response to Genearl Motors' Objections to Depsoition of Dan Moran filed. (From James D. Adams) |
| Sep. 21, 1990 | Response to General Motors' Objections to Deposition of Daniel J. Horvath filed. (From James D. Adams) |
| Sep. 17, 1990 | Discovery Order (unsigned) filed. (from James D. Adams) |
| Aug. 17, 1990 | Petitioenr, GMC's Motion to Preclude Evidence Regarding Financial Condition of Non-Protesting Dealers filed. |
| Aug. 17, 1990 | Respondent's Motion to Compel Asnwers to Questions Propounded at Duhaney Deposition; Colonial Pontiac, Inc.'s Notice of Filing Deposition of Trevor H. Duhaney for Use in Support of Respondents' Motion to Compel Answers to Questions Propounded at Duhaney D |
| Aug. 17, 1990 | Deposition of Trevor Duhaney filed. |
| Aug. 16, 1990 | Notice of Takming Deposition (3) filed. |
| Aug. 15, 1990 | Notice of Taking Deposition filed. |
| Aug. 15, 1990 | Respondent's Emergency Motion to Supplement Witness List filed. |
| Aug. 10, 1990 | Re-Notice of Taking Deposition filed. (from J. Adams). |
| Aug. 08, 1990 | (Respondents) Re-Notice of Taking Deposition filed. (From James D. Adams) |
| Aug. 03, 1990 | CC of Camp Buyer Behavior data for 1988 ; & cover letter fromV. Katsafanas filed. |
| Aug. 03, 1990 | (Respondents) Re-Notice of Taking Deposition filed. (From Peter M. Feaman) |
| Aug. 03, 1990 | (Respondents) Re-Notice of Taking Deposition filed. (From Peter M. Feaman) |
| Jul. 30, 1990 | (Respondent) Additional Non-Expert Witnesses filed. (from James D. Adams) |
| Jul. 20, 1990 | Petitioner's Opposition to Respondents' Motion to Compel Deposition filed. (from Jeffrey P. Wasserman) |
| Jul. 20, 1990 | (General Motors Corporation) Notice of Taking Deposition filed. (From Vasilis C. Katsafanas) |
| Jul. 20, 1990 | Petitioner's Opposition to Respondents' Motion to Compel Deposition filed. (from Jeffrey P. Wasserman) |
| Jul. 17, 1990 | General Motors Corporation's Memorandum In Opposition to Respodnent'sMotion to Compel Deposition Testimony of Trevor H. Duhaney filed. (from Vasilis C. Katsafanas) |
| Jul. 13, 1990 | Petitioner, General Motors Corporation's Motion to Compel With Regardto First Request For Production of Documents w/exhibit-A filed. (FromVasilis C. Katsafanas) |
| Jul. 13, 1990 | General Motors Corporation's Motion to Compel With Respect to Second Request For Production of Documents w/exhibit-A filed. (From (From Vasilis C. Katsafanas) |
| Jul. 13, 1990 | General Motors Corporation's Motion to Shorten Respondent's Time to Respond to Motion to Compel With Respect to Second Request For Production and General Motors Corporation's Motion For Emergency Hearing on Its Motion to Compel With Respect to Second Requ |
| Jul. 13, 1990 | General Motors Corporation's Second Request to Produce to Colonial Pontiac, Inc. filed. (from Vasilis C. Katsafanas) |
| Jul. 13, 1990 | General Motors Corporation's Motion to Shorten Respondent's Time to Respond to Motion to Compel With Respect to First Request for Production and General Motors Corporation's Motion For Emergency Hearing on ItsMotion to Compel With Respect to First Reques |
| Jul. 13, 1990 | (Respondent) Amendment to Non-Expert Witness List filed. (from James D. Adams) |
| Jul. 13, 1990 | (Respondent) Notice of Emergency Hearing filed. (From Peter M. Feaman) |
| Jul. 11, 1990 | Respondents' Motion to Compel Deposition Testimony of Petitioner, Trevor H. Duhaney w/exhibit-A filed. (From Peter M. Feaman) |
| Jul. 11, 1990 | Deposition of Trevor H. Duhaney filed. |
| Jul. 11, 1990 | (Respondent) Motion For Emgergency Hearing On Respondents' Motion to Compel filed. (from Peter M. Feaman) |
| Jul. 10, 1990 | Petitioner, General Motors Corporation's Response to Respondent's Motion to Compel With Respect to Second Request For Production of Documents filed. (From Vasilis C. Katsafanas) |
| Jul. 10, 1990 | Petitioner, General Motors Corporation's, Response to Respondent's Motion to Compel With Respect to Third Request For Production of Documents filed. (From Vasilis C. Katsafanas) |
| Jul. 10, 1990 | Petitioner, General Motors Corporation's, Response to Respondent's Motion to Compel With Respect to First Request For Production of Documents filed. (From Vasilis C. Katsafanas) |
| Jul. 05, 1990 | Order (motion for extension of time granted; Packer Pontiac dismissedas party) sent out. |
| Jul. 02, 1990 | Notice of Withdrawal of Protest by Packer Pontiac filed. |
| Jun. 29, 1990 | General Motors Corporation's Motion For Extension of Time to Respond to Respondents' Motions to Compel with Respect to First, Second and Third Requests For Production filed. (From Vasilis C. Katsafanas) |
| Jun. 25, 1990 | (Respondents) Re-Notice of Taking Deposition Duces Tecum w/exhibit-A filed. (From Peter M. Feaman) |
| Jun. 25, 1990 | Petitioner, General Motors Corporation's Prelimary Non-Expert WitnessList filed. (From Vasilis C. Katsafanas) |
| Jun. 22, 1990 | (Respondents) Motion to Compel With Respect to Second Request for Production of Documents filed. (From James D. Adams) |
| Jun. 22, 1990 | (Respondents) Request for Oral Argument on the First Second and ThirdMotions to Compel Filed by Respondents Herein rec'd (from James D. Adams) |
| Jun. 20, 1990 | Notice of Service of Response to Respondents' Second Set of Interrogatories filed. (From Vasilis C. Katsafanas) |
| Jun. 20, 1990 | (Respondent) Notice of Taking Deposition filed. (From Peter M. Feaman) |
| Jun. 18, 1990 | (Respondent) Notice of Taking Deposition (4) filed. (from Peter M. Feaman) |
| Jun. 18, 1990 | (Respondent) Preliminary Witness List filed. (From James D. Adams) |
| Jun. 11, 1990 | (respondents) Notice of Taking Deposition filed. |
| Jun. 08, 1990 | Order sent out. |
| Jun. 08, 1990 | Order sent out. |
| Jun. 01, 1990 | (Respondents) Response to General Motors Coproation's Motion For Entry of an Order Scheduling Identification of Non-Expert Witnesses filed.(from James D. Adams) |
| May 31, 1990 | Notice of Taking Deposition filed. (Peter M. Feaman) |
| May 22, 1990 | General Motors Corporations' Motion For Entry of An Order Scheduling Indentification of Non-Expert Witnesses filed. (from Vasilis C. Katsafanas) |
| May 18, 1990 | Order sent out. |
| May 16, 1990 | Agreed Discovery Order sent out. |
| May 16, 1990 | (Hallett Pontiac, Inc.) Voluntary Dismissal Of Protest filed. (from James D. Adams) |
| May 16, 1990 | (Respondents) Second Set Of Interrogatories Propounded to Petitioner General Motors Corporation, Pontiac Division filed. (from James D. Adams) |
| May 15, 1990 | (Petitioner) Agreed Discovery Order filed. (from Vaqsilis C. Katsafanas) |
| May 08, 1990 | (Petitioner) Stipulated Protective Order filed. (from Vasili8s C. Katsafanas) |
| Apr. 26, 1990 | (Respondent) Third Request For Production Propounded to Petitioner General Motors Corporation, Pontiac Division & Exhibit-1 filed. (from James D. Adams) |
| Apr. 20, 1990 | (Respondents) Motion to Compel Answers to Interrogatories and Motion to Stay filed. |
| Apr. 02, 1990 | General Motors Corporation's Reply to Respondents' Motion For Extension of Time to Answer Interrogatories and Produce Documents and Motion For Protective Order filed. |
| Mar. 22, 1990 | (Respondent) Motion for Extension of Time, Objections and Motion For Protective Order filed. |
| Mar. 19, 1990 | (Petitioner) Notice of Service of Response to Respondents' First Set of Interrogatories filed. |
| Mar. 19, 1990 | (J. M. Pontiac, Inc.) Voluntary Dismissal filed. |
| Feb. 23, 1990 | First Request for Production Propounded to Petitioner General Motors Corporation, Pontiac Division w/exhibit-1 filed. |
| Feb. 20, 1990 | (General Motors) Notice of Service of Interrogatories filed. |
| Feb. 12, 1990 | (Respondent) First Set of Interrogatories Propounded to Petitioner General Motors Corporation, Pontiac Division filed. |
| Jan. 26, 1990 | Notice of Hearing sent out. (hearing set for Aug. 20-31, 1990; 9:00;Miami) |
| Jan. 26, 1990 | Order of Prehearing Instructions sent out. |
| Jan. 17, 1990 | General Motors Corporation's Response to Initial Order filed. |
| Dec. 29, 1989 | Order Granting Motion for Extension of time to Respond to Initial Order sent out. |
| Dec. 26, 1989 | Joint Motion for Extension of Time to Respond to Initial Order filed. |
| Dec. 15, 1989 | Initial Order issued. |
| Dec. 12, 1989 | Letter to H. Noxtine from J. Adams (request for hearing); Letter to H. Noxtine from T. Joyce (re: establishment of dealership); & referral letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 08, 1993 | Opinion | |
| Jan. 29, 1992 | Agency Final Order | |
| Aug. 21, 1991 | Recommended Order | New dealer application approved; evidence established poor penetration and lack of adequate representation by existing dealers; balancing of statutory criteria required. |
